WARDEN'S COURT.

Cromwell Argus, Volume I, Issue 10, 12 January 1870, Page 4

WARDEN'S COURT.

WEDNESDAY, JANUARY 5, 1870. (Before Vincent Pykr, Esq., Warden.) ~" Goodger& Hebdenv. Logan.—Adjourned case. The Warden stated that in consequence of the death of Mr Garr«tt, one of the partners, he would bo unablo to proceed with the case until he had word from the Curator of Intestate V,n-M tatcs in reference to Mr Garrett's interest i*Wr e partnership. '* Y > * Mr Brough applied that Mr Hebden, who had been appointed manager at the last sitting of the Court, should retain his position until next Court-day. S Some conversation having ensued between tho solicitors for plaintiffs and defendant (Messrs Brough and Bailey), and the manager's report for the past fortnight having been read, tins was ultimately agreed to. , The case was then adjourned till Wednesday,' the 19th inst. IWSPUTKD PARTNERSHIP. Gibson, Bond, and Austin v. Colclough and Lyons.—Application by plaintiffs to be adjudged partners of defendants in a quartz-claim at Bendigo. Mr Brougb and Mr Manders appeared for complainants. M r Colclough conducted the de- ■ defence. On the application of Mr Brough, and after considerable argument on the subject, it was decided to try the case with assessors. The following assessors were then appointed:—Henry Bertrand, John Beattie, Robert E. Dagg, and Michael Connellan. The Warden intimated that in view of the probable time the case would occupy, he would adjourn it till after dinner, the hearing to take place in the hall attached to the Crowwell Hotel, in consequence of the suffocating atmosphere of the Court-house—a building totally inadequate to the requirements of the town. A number of applications for transfers, machinery sites, registration £>i water-races, &c, were disposed of in various ways, and the Court then adjourned for half-an-hour. On resuming (in the large hall of Kidd's hotel) the case Gibson, Austin, and Bond v. Colclough and Lyons was called on, and the assessor* were sworn in.

The following were the counts in the indictment : —l. That on the 24th day of October, 1869, they entered into an agreement to form a mining company for the purpose of obtaining a mining interest in the Cromwell district, and that a company was so formed.—2. That the members of such company were Charles Colclough, Francis Lyons, George Bond, Jas. Gibson, and -lfred Austin.—3. That they thereupon despatched as their representative the said Francis Lyons to procure said interest in the Cromwell district.—4. That on or about the 30th October last, 1869, the said Francis Lyons and the said Charles Colclough discovered a quartz claim, and applied on behalf of the company for 1200 feet of ground.—s. That the said Charles Colclough and the said Francis Lyons refuse to acknowledge that complainants are entitled to their due and equal share thereof. Whereforo the complainants claim that the defendants be adjudged to acknowledge the rights of complainants to hold one-sixth share in the prospecting claim known as Colelough's. defendants pleaded a general denial of S '"Ehe following evidence was then taken : James Gibson, being sworn, said : I am a miner tat Cardrona. I remember the 24th October last. On that day, Bond, Austin, and myself were sitting in Bond's house, at Cardrona. Wo tried to enter into an arrangement that one of us should go down to the reefs at Bendigo, as a representative of a company consisting of the three of us. Hearing that Frank Lyons was going down under some arrangement with Colclough, Austin and 1 called upon the latter, Bond having by this time gone to bed. We told Colclough that we had been in conversation on the subject of sending some one down to the reefs, and asked him if he had any objection to joining with us, and we would pay equal shares in the expense of keeping Lyons down there. Colclough said ho would be glad to do so, as he would have less risk. Colclough objected to Bond being one of the company, but subsequently he agreed to his joining, fearing that the company would not be formed if Bond did not come in. It was agreed that we should see Bond on the subject the following day. Colclough suggested that I should go and see Lyons, which 1 did. I found him in bed, and woke hiru up. I told him what had occurred, and as he thought Colclough was sending him down more for the purpose of giving him a lift than for any other reason, he expressed his satisfaction at the others having joined. I explained to Lyons that if Bond joined, he (Lyons) would bo entitled to four-fifths wages, anil a fifth share in any discovery made, and if Bond did not join, he would get three-fourth wages, and a fourth share in any discovery. He was satisfied with this arrangement. I saw Bond next morning, and told him how matters had been arranged. He then joined the company. While at Colelough's house, Austin asked how Lyons was supplied with cash, and offered to advance some if necessary. Colclough said there was no occasion for it. I afterwards told Colclough that Bond had joined. Colclough went to Bendigo some days afterwards. On the Thursday following Colelough's departure I heard that ho had made a rich discovery at Bendigo, and on i the following day lie came to where I was mus- | tering some sheep in which he and I were parti | ners (about four miles above the Cardrona), and i congratulated me on being a shareholder with him in the discovery, He said he had sent Bond and Austin down to tho reefs—the former to endeavour to ascertain the nature of some objections lodged by the Aurora Co. ; the latter to work in the claim, which he did. From a I question asked me at Cardrona afterwards, I [ asked Colclough what interest in the discoj very he claimed. He told mo be was the dis- ; coverer, and had brought Lyons and another H man, named Gorman, to it, and that he would ; expect two shares for himself, two for Gorman, '* and two for Lyons and company. I understood when the agreement was made that we were all to have equal shares. The agreement between j us was to last for three weeks, as we considered that a sufficient time for Lyons to look round him. The discovery was made within the threo weeks.

; JThe witness was cross-examined at some length by Mr Colclough, but nothing of any material ' importance was elicited. , Alfred Austin, sworn : I am a miner, residing { at Gardrona. T recollect having a conversation with Gibson and Bond, at Cardrona, about tho Bcndigo leefs. The three of us went to see Mr ( Colclough, who, we had ascertained, was sending Lyons down. We asked him if ho had any ob--1 jections to joining with us, the expense of se'ii's 1 ing down Lyons to be borne by the company. i He objected to Bort'l having anything to do with it ; Mit a'te. - some discussion on the subject, ho ' | eventually agreed to Bond joining. He said ha i was very gl id of t he arrangement. In the event

of Bond agreeing to enter tho company, Lyon was to receive four-fifths wages, and a fifth share in any discovery he might make ; if Bond did not join, Lyons to haVO threo-quarter wages, oi and a fourth share of any discovery. I asked Colclough if Lyons was ill want of money. He el said that I need not trouble myself about that, as I did not see Lyous. Shortly after this I heard f( ,that a rich discovery had been made by Col'rlough, who had gone to the reefs. I went up P he having just arrived from Bendigo t] Hy.Y--, He asked me if I had heard of our good luc'iS. I said I had, but did not know I was in it. He shook hands with me, and congratulated tl me on having a share. He asked me to go down to the claim, and told me that there was another shareholder, named Gorman, who was present when the discovery was made. He told me 1 had better go down to work in the claim, and that Bond should also go down and endeavour to gain r( information respecting some objections lodged by the Aurora company. Bond and I went y, down. I worked in the claim for nearly four y weeks. si In cross-examination by Mr Colclough, witness tl said that he at first thought the discovery was a a < private one of Colclough's, and he would in that s l case have been quite satisfied with a fifth share hj of the interest he understood to have been given E Lyons ; but when he learnt that the latter was a present at the discovery, he considered he was ri entitled to a fifth share of the whole. £ By an assessor : I was not paid for any work S ; done in the claim. • si George Butler Bond, sworn, deposed : lam a (| hotel-keeper at Cardrona. I recollect Gibson, 2 Austin, and myself having a conversation in my c , house on the 24th October last. We wished to 'I get up a company to send some one down to the ei Bendigo reefs. We knew that Lyons was going b down on behalf of Colclough, so Gibson and t< Austin went to the latter's place to see if he £ would mind joining with us. Gibson came to a me the following morning, and said they had £ arranged with Colclough, and that I could join ti the company if I chose. This I agreed to do. c , A few days after this an " extraordinary" ar- \, rived at the Cardrona, stating that a rich dis- <i covery had been made at Bendigo. I saw Col- s , clougn about an hour afterwards. He congratu- fc lated me on the success we had met with, and j said I would have to go down at once, as the 1 . Aurora Co. had raised some objections. He said ti I was not to mention having an interest in the t' claim, and I. would be better able to learn the u nature of the objections. Austin was also told by Colclough to hurry? down, and he bought a horse to do so. We both went down, and met Lyons at the reefs. Lyons borrowed Austin's c ' horse to go to Cromwell, and I gave him £lO for defraying expense* on behalf of the company. The next opportunity I had of seeing Colclough £, was on the 18th of November, but I had then j ( heard from Gibson that we were only being acknowledged by Colclough as shareholders to the extent of one-fifteenth each—that is, a fifth | part of Lyons's interest only. This Colclough _ maintained in a conversation I then had with him. * j Six other witnesses were examined for the complainants, the whole of the evidence being n more or less corroborative of the facts elicited £ above. 3 For the defence Mr Colclough called j Francis C. Lyons, who deposed as follows : I am a miner, and live at Bendigo. I recollect Sunday, the 24th October. I was going down to the Bendigo reefs the following morning, under an arrangement with you. I was to receive half-wages, and a half-share in anything I discovered. After I was in bed that evening, Gib- «I son came to me and said that he and Austin had & speaking to you in reference to securing a c site for the erection of public crushing ma- J chinery, &c. lie told me that Austin wished to *■ join in the speculation, and he wanted me to s look after the necessarv water-rights and a site for machinerv. I told him 1 could not listen to s any proposition of the sort, as I was already en- c gaged to you. He said that you had no, objec- i as there was to be a company formed. I understood that Bond had nothing to do with , it. Gibson said, " I hope you will attend to this, and don't go running after quartz reefs." ' I started early next morning, and did not see Gibson again till the Bth of iNovember. I never t saw either Bond or Austin in reference to the matter till that date. Austin worked in the claim from the sth November to the 10th, and again from the 12th to the 23rd. You, Gorman, j and [ were present when we discovered the reef, j It was taken up between the three of us. I con- . sidcred that the half of my interest belonged to you, in terms of our agreement ; but before the ' discovery of the rich specimens in the claim you ] gave me back this portion. I never acknowledged that Gibson, Austin, and Bond were entitled to equal shares with myself in my shares, ' but liberally intended to give them an interest. The witness was cross-examined by Mr Brough. Charles Colclough, storekeeper and publican, ; Cardrona, being sworn, said : On the 24th of , October last I agreed to give Lyons £2 per week wages to go to the Bendigo reefs for me as a prospector, and also a half share in any discoveries he might make. The same evening, after Lyons had left, Austin and Gibson came to me. They said they were thinking of sending a man down to try and get a site for machinery, waterrights, &c. They asked me if I would join with them in the erection of machinery, and I said I would not mind going in to the extent of £2OO. They mentioned Bond as one of the partners, . but I objected to him having anything to do * with it. I never waived that objection. Gibson then asked me if I would mind allowing Lyons to look after the site. I told him I had no objections,' and he then went over to see Lyons. He returned in a few minutes, saying that Lyons had agreed to do so. Lyons left for ' the reefs next morning. Some few days afterwards I proceeded to Bendigo. I found Lyons cutting a trench with Gorman. The following day the three of us went out for a walk. On our way to Beare's store we by accident came upon a stone sticking out of the ground. I found some specks of gold in it, and on looking we discovered more gold. We then pegged out a claim, j and on the following day I rode to the Dunstan and applied for protection for a prospecting claim i for three. I gave Lyons the half of his share j winch I was entitled to. Lyons said to me that ( and Austin had been ve»y kind to him i he would divide one of his shares between the j company. What I said in Cardrona to some of j the company was that they might be thankful, j as Lyous had agreed to divide a share between j tkem. I was quite astonished when I heard of j legal proceedings being taken. Mr Brough addressed the Court at consideri able length for the complainants ; and the Warj den then briefly and impartially summed up. I After about an hour's deliberation, the asses--1 son returned the following verdict: —l. The i'i so for as Gibson and Austin are f concerned, is proved. Bond's partnership is not j proved.—2. That the members of the company ' _ are Colclough, Gibson, Austin, and Lyons.—3. .'That .jyons was employed by said company.— j 4. Thj£ Colclough shall hold two shares ; and thaVsjyons' two shayes shall be divided among / Lyons, Gibson, Colclough, and Austin—s. Tuat j defendants shall pay the costs of Court, and j that plaintiffs and defendants shall each pay j -. legal and witnesses' expenses, &c.